What Happens if I Refuse the DUI Tests?

Several states are now making refusal to submit blood, urine or breath samples in a DUI-DWI a criminal act carrying criminal penalties. Some of these states only make it criminal if you are subsequently convicted of your DUI-DWI offense. If you refuse the DUI tests, such a refusal in these states can be a criminal offense by itself, or might only enhance your punishment beyond the regular penalties if you are convicted of the underlying DUI-DWI offense and are deemed to have refused to be tested.

The order in which the steps of your arrest and the advisement was given to you can make a very significant difference in your case, which is yet another reason why your drunk driving defense attorney will ask you to work very hard at remembering everything that happened to you in the hours surrounding your DUI-DWI arrest. In most states, you must be officially arrested before the implied consent is read to you. In other states, the order or sequence of steps required to invoke implied consent is not as important to these states’ appellate judges, or it is not specified in the statute.

In most states, the law enforcement officer must give you some form of implied consent notification before the blood, breath or urine sample is taken from you. Otherwise, the prevailing rule is that the test results will likely have to be thrown out. The admonishment of your obligations and rights under implied consent may not have to be done word for word to match the precise words in the statutes.

Instead, in most situations, it must inform you only of the true and legitimate consequences of your refusal as well as the implications of testing and rendering a result over the legal limit. In other states, the prosecution does not lose your test results if at least some version or part of the correct notification is given.

Whether or not criminal penalties are imposed for refusing to take a blood, urine or breath test, such refusals often badly damage your DUI-DWI case. The admission into evidence by the prosecution to undergo chemical testing is often detrimental in the eyes of a jury. The admission of your refusal against you at trial has been held to be constitutional by the United States Supreme Court and by nearly all states.

Unless satisfactorily explained, the jury will normally assume that you refused to be tested because you had consumed too much alcohol and were afraid of failing the test, an assumption that the prosecutor seldom fails to bring to the jury’s attention. Experienced DUI-DWI attorneys know ways to neutralize the impact of a refusal in the eyes of either a judge (bench trial) or a jury.

In many states the admission into evidence of a chemical test refusal entitles the prosecution to a “consciousness of guilt” jury instruction, stating that the jury may consider the refusal as evidence of a consciousness of guilt of drunken driving by you. In those states, knowledgeable defense counsel may also submit a counterpart to the state’s “consciousness of guilt” jury charge by submitting a “consciousness of innocence” jury charge (instruction) where you tried or offered to take some type of test, but were denied the opportunity to take a test by the officer.

Also, as a practical matter when evidence of a refusal is admitted during the prosecution’s case, it is often necessary for you to have to testify in order to effectively explain your reasons for refusing to submit. Most experienced trial lawyers handling DUI-DWI trials prefer to NOT put their clients on the witness stand. Obviously then, the admission into evidence of a chemical test refusal should be avoided by seeking its exclusion at a pre-trial motion hearing, if at all possible.

Significant penalties typically exist for refusing to take the breath, blood or urine test when officially and properly requested to submit to such test or tests by the law enforcement officer. The specific automatic penalties depend on whether this is your first arrest for DUI-DWI. If it is not your first offense, the amount of time since your prior DUI-DWI offense(s) may determine the severity of any penalties for a second or third “refusal” to be tested under implied consent.

In most states, unless someone was serious injured or killed as a result of an accident related to your DUI-DWI arrest, you typically have the right to refuse to allow the police to take a blood, breath or urine sample from you. In other words, the drawing of your blood, or the taking of a breath or a urine sample by the police must typically be voluntary. However, if you are incapacitated, either because you are unconscious, incoherent or unable to consent for whatever reason, you ordinarily lose your right to refuse such samples being taken from you in the majority of states.

In Mississippi and Tennessee, although the police can still obtain blood or urine samples for testing if you are unconscious or incapable of refusing, these results may not be used by the prosecution in its case against you in court.

Florida’s courts have ruled that absent a felony arrest, forcible draws of blood or urine are not authorized. Georgia has highly protective guidelines for the suspected DUI-DWI driver who has refused testing based upon some felony arrests and for all misdemeanor arrests. When you refuse, the police in most states do not have the authority to force you to submit to a blood or urine test in a normal DUI-DWI case, even by seeking a search warrant. A new statute enacted in 2006 seeks to change Georgia law on this issue.

A troubling and growing trend, now being used in more than a dozen states, is being permitted by some appellate courts. These courts have held that a person who refuses breath testing can be restrained or even physically harmed to forcibly draw blood or use a catheter in the person for a urine sample. Typically this occurs when another person in a suspected drunk driving accident case has been seriously injured or killed as a result of the accident. Case examples have all cropped up in the past 10 years and foreshadow likely problems ahead.
Because Arizona has one of the broadest statutes [A.R.S. § 28-1388] authorizing forcible blood draws in every suspected DUI-DWI case, their statute is reproduced here for the reader to examine.

D. If a person under arrest refuses to submit to a test or tests under § 28-1321, whether or not a sample was collected pursuant to subsection E of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an issue of fact to be determined by the trier of fact in all cases.

E. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated § 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.

What is apparent is the harsh, criminal penalties for refusal coupled with an easy, approved statutory method of obtaining a telephonic search warrant for a forced blood draw. Even more disturbing is the practice by Arizona to allow police officers to attend a course lasting a couple of hours to restrain you and then permit the OFFICER to draw your blood. This is covered by the language in §28-1388 (A) after it discusses doctors and nurses drawing the blood. Note that § 28-1338(F) gives the officer who harms you or kills you immunity from being sued! This is American justice at its best!